THE COURT WILL AFFIRM THE DECISION OF THE MSPB BECAUSE THE BOARD'S FINDING OF HARMLESS ERROR WAS NOT ARBITRARY OR CAPRICIOUS.
The standard by which the Court reviews decisions of the MSPB is set forth at 5 U.S.C. § 7703 (1982). This section provides that "the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. § 7703(c). The Court is convinced that the MSPB's affirmance of the agency's action here is valid under this standard.
Pursuant to the RIF regulations, 5 C.F.R. Part 351, plaintiff, upon separation, would have been entitled to: 1) 30 days written notice; 2) certain retention and reemployment rights; and 3) notice in writing specifying his position and date of termination, giving reasons, if applicable, for retaining a lower-standing employee in the same competitive level, and apprising the employee of his right to appeal to the MSPB. First, plaintiff was accorded more than 30 days written notice, in that he was informed on February 6, 1981 that he would be separated effective March 9, 1981. Second, as an excepted employee, plaintiff had no right to reemployment priority. 5 C.F.R. § 351.1002. Further, he had no meaningful retention rights because he was the only employee at his competitive level and thus there was no lower level employee for him to displace. See 5 C.F.R. §§ 351.402, 351.403 & 351.502. Third, although the agency did not specifically follow the form prescribed by the regulations, plaintiff did receive notice of or access to all of the items for which written notice is mandated. It is evident that plaintiff was aware of the most important and relevant of his rights -- the right to appeal his termination to the MSPB -- in that plaintiff exercised that right in a timely manner.
In order to justify reversal of the agency's actions, plaintiff must demonstrate that the agency committed harmful procedural errors in dismissing him. 5 U.S.C. § 7701(c)(2)(A); 5 C.F.R. § 1201.56(b)(1) (1980). An error is only considered harmful if the absence of the error "might have caused the agency to reach a conclusion different than the one reached." 5 C.F.R. § 1201.56(c)(3) (1980). In light of the fact that the procedures accorded plaintiff were the same as he would have received under the RIF regulations, the Court holds that the error alleged could not have affected the result achieved.
Plaintiff argues that the agency committed harmful error per se by failing to follow the RIF regulations, citing Horne v. MSPB & ICC, 221 U.S. App. D.C. 381, 684 F.2d 155 (D.C. Cir. 1982). However, in Horne the Circuit Court specifically stated that "remand would be unnecessary if petitioners had no job tenure rights." Id. at 158. Plaintiff here was a non-career, excepted service employee with no job tenure rights. See IMD 3390. Pursuant to the reasoning in Horne, the Court holds that where, as here, the plaintiff had no such rights, he could not be compromised by the failure to explicitly follow proper procedures.
Id. The Court thus concludes that the MSPB's harmless error determination was not arbitrary or capricious.
An Order in accordance with the foregoing will be issued of even date herewith.
For the reasons set forth in the Memorandum Opinion in the above-captioned case issued of even date herewith, it is, by the Court, this 19 day of May, 1983,
ORDERED that Defendant's Motion for An Order Affirming, In Part, the Decision of the Merit Systems Protection Board is granted and Count II of plaintiff's complaint is hereby dismissed.